JOE HEATON, District Judge.
Plaintiff Blessing N. Igwe filed this action against her former employer, Saint Anthony's Hospital ("SAH"), asserting claims under Title VII, § 1981 and state law. She alleges SAH discriminated against her on the basis of race and national origin and also retaliated against her in violation of federal law and Oklahoma public policy. She also asserts state claims for workers' compensation retaliation and tortious interference with business relations. Defendant has moved for summary judgment, which is appropriate only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court has viewed the evidence and any reasonable inferences that might be drawn from it in the light most favorable to plaintiff, the nonmoving party, and concludes defendant's motion should be granted as to all claims.
Plaintiff, who was born in Nigeria, began working as a registered nurse at SAH in July 2004. She was promoted to Charge Nurse in the Child Adolescent Residential Unit ("CARU") in August 2005.
Plaintiff met again with Ms. Boyd and Ms. Martin on June 13, 2008, to discuss plaintiff's allegations of disparate treatment. The parties planned to meet again to attempt to resolve plaintiff's issues and concerns. Defendant's Exhibit 8. In anticipation of that meeting, plaintiff sent Ms. Boyd a letter, dated June 17, 2008, in which she "detailed a history of specific instances of what [she] believe[d] to be examples of disparate treatment by [her] manager, Margaret Martin." Id. She complained that Ms. Martin had denied her request to take both three days of leave in May 2008, and two weeks the following August. Plaintiff claimed Ms. Martin told her that she had not worked at the hospital long enough to take more than 80 hours of paid leave that year. She stated that she did not find such a limitation in the hospital's leave policy and was aware that RN's and other employees frequently took more than two weeks' leave during the year. Plaintiff also wrote that Ms. Martin had singled her out when she told plaintiff to stop clocking in early. Plaintiff stated that while Ms. Martin knew that two other Charge Nurses had been doing the same thing for a significant period of time, she had not disciplined them. She also asserted that Ms. Martin had ignored the repeated tardiness of another employee and that, despite repeated requests to Ms. Martin, she had not received a password for the hospital's At-Staff computer program, while the other Charge Nurses on Ms. Martin's team, and another Charge Nurse hired after her, had been given their passwords. Finally, plaintiff mentioned that Ms. Martin had indicated to her that she relied on the opinion of plaintiff's former supervisor when evaluating plaintiff in March 2008, and, in conjunction with the June 9, 2008, discipline had inaccurately and/or falsely told plaintiff she had several disciplinary actions in her personnel
Ms. Boyd subsequently sent plaintiff a letter dated June 23, 2008, in which she stated that she had met with Cynthia Brundige from SAH's Human Resources Department and they would investigate the issues raised in plaintiff's letter and respond in writing. In a letter to plaintiff dated July 17, 2008, Ms. Boyd addressed each item listed in plaintiff's June 17, 2008, letter. Defendant's Exhibit 10. She concluded with: the "investigation into the matters raised in our meeting and in your two letters does not substantiate that you have been subjected to disparate treatment."
In December, 2008, a patient's mother complained that plaintiff had been rude to her on two occasions. Ms. Boyd filed a report regarding the complaint, dated December 15, 2008, in which she detailed what the mother said and stated that she had discussed the complaints with plaintiff, who denied she had been rude. A couple of weeks later the mother of a minor patient, J.T., complained to the child's therapist that she had not been informed that J.T. had been placed in a therapeutic hold
SAH personnel follow certain procedures in conjunction with the use of a therapeutic hold on a CARU patient. If a patient engages in violent or self-destructive behavior, the Mental Health Technician ("MHT") notifies the Charge Nurse, who assesses the patient and intervenes. If the patient cannot be calmed down, the Charge Nurse calls the doctor and then follows his instructions, writing the order in the patient's chart. If the patient continues the behavior a hold may be performed. The Charge Nurse is supposed to supervise the hold if she is available. She also is responsible for documenting any
The OCA conducted an investigation regarding the hold placed on J.T., interviewing J.T., plaintiff, Ms. Boyd, Ms. Lovick, Ms. Martin, Melissa Sanders-Ezell, a Recreational Therapist, and Deadra Stamps and Jimmy Ezell, MHT's. The last three individuals were on duty with plaintiff on December 27, 2008. The OCA investigated whether plaintiff and Mr. Ezell engaged in caretaker misconduct.
Defendant's Exhibit 12, p. 1. While the OCA found caretaker misconduct by plaintiff, it concluded that "[t]he evidence [was] insufficient to support a finding of caretaker misconduct by MHT Ezell." Id. at 4. The agency stated in its report that:
Id.
Defendant's records did not reflect that the staff had problems with J.T. on December 27, 2008, or that Ezell asked plaintiff for assistance. Plaintiff testified that if the situation involving J.T. that was described in her termination papers
SAH's discipline policies are divided into three categories of rules, Groups I-III. A Group III Rule violation includes "any action or neglect which results or could have resulted in placing the recovery of a patient in jeopardy, as determined by competent personnel."
On February 3, 2009, before she was discharged, plaintiff was injured at work by a patient and was placed on light duty by her physician. In January 2010, plaintiff applied for a position with OU Medical Center. She claims she was not hired because SAH gave her a bad reference.
Plaintiff relies on the McDonnell Douglas
To establish a prima facie case of termination on the basis of race or national origin,
Although defendant did not challenge whether plaintiff had established presented a prima facie of discriminatory discharge,
"Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons."
Plaintiff claims the hospital's prior discriminatory treatment of her constitutes evidence that defendant's stated reason for her termination is false. Citing Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011), she argues that the hospital cannot avoid liability by relying on the OCA's findings as justification for its decision to terminate her. However, Staub is distinguishable. There the Supreme Court considered the "cat's paw" theory, holding that "if a [subordinate] supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.. . ." Staub, ___ U.S. at ___, 131 S.Ct. at 1194. Here, SAH is not arguing that someone other than the person accused of discriminating against plaintiff made the termination decision.
Although prior discriminatory treatment may be evidence of pretext, plaintiff has failed to offer sufficient evidence to create a triable dispute for the jury. She asserts in her response that
Plaintiff's response, p. 16.
Plaintiff also attempts to show that defendant acted contrary to an unwritten policy or company practice "by providing evidence that [s]he was treated differently from [an]other similarly-situated employee[] who violated work rules of comparable seriousness." Kendrick, 220 F.3d at
There are several problems with plaintiff's argument. First, plaintiff was not "similarly situated to [Ezell] in all relevant respects."
Second, even if plaintiff and Ezell were similarly situated, they "must have been disciplined for conduct of `comparable seriousness' in order for their disparate treatment to be relevant." Id. (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir.2000)). Plaintiff asserts that Ezell was not disciplined. However, the OCA found plaintiff, but not Ezell, had committed caretaker misconduct. While Ezell admitted he did not complete the required paperwork,
The crux of plaintiff's argument is that she disputes the OCA findings that she, and not Ezell, committed caretaker misconduct. However, "a challenge of pretext requires a court to look at the facts as they appear to the person making the decision to terminate, not the aggrieved employee." Green, 420 F.3d at 1191 n. 2. Plaintiff has not met her burden of pointing to some admissible evidence showing that SAH's proffered explanation for her termination is mere pretext. Defendant is entitled to summary judgment on her discriminatory discharge claims under Title VII, § 1981 and state law.
Defendant challenged plaintiff's retaliation claims, asserted under Title VII, § 1981 and state law, on the grounds she (1) could not show a causal connection between her complaints of discrimination while employed at SAH and her termination and (2) had not offered admissible evidence demonstrating that SAH gave her a bad job reference in retaliation for filing a complaint with the EEOC. Plaintiff ignored the hearsay objection raised by defendant as to the testimony offered in support of the latter ground, but otherwise contended that "causation is established by additional evidence showing that shortly after she filed her internal complaint, Defendant began a retaliatory campaign designed to ultimately terminate her employment." Plaintiff's response, p. 12. Such unsubstantiated, conclusory allegations are insufficient to demonstrate causation. Plaintiff's other argument directed to causation consists of her statement that "Defendant's termination of Plaintiff in reliance on the OCA Report satisfies the causation requirement." Id. at p. 13. While it is unclear what plaintiff means, it is clear that she has not offered any evidence linking either her termination or the alleged bad job reference to protected activity.
In addition to claiming she was terminated on the basis of her race and national origin, plaintiff asserts defendant fired her in retaliation for filing a workers' compensation claim. The Oklahoma Workers' Compensation Act ("Act") prohibits any "person, firm, partnership, corporation or other entity [from] discharg[ing]. . . any employee because the employee has in good faith . . . [f]iled a claim [or] . . . [i]nstituted or caused to be instituted any proceeding under the [Workers' Compensation Act]." 85 Okla. Stat. § 5(A)(1), (3). To establish a prima facie case under this statute a plaintiff must demonstrate: (1) employment; (2) an on-the-job injury; (3) medical treatment which put her employer on notice that treatment had been rendered for a work-related injury; and (4) consequent termination. Blackwell v. Shelter Mut. Ins. Co., 109 F.3d 1550, 1554 (10th Cir.1997), citing Buckner v. General Motors Corp., 760 P.2d 803, 806 (Okla.1988).
While the first three elements of plaintiff's prima facie case are not in dispute, the fourth is the stumbling block. As construed by the Oklahoma courts, the requirement of "consequent termination" imposes a burden on a plaintiff to "produce evidence sufficient to support a legal inference that the termination was `significantly motivated' by retaliation for exercising her statutory rights." Blackwell, 109 F.3d at 1554 (quoting Wallace v. Halliburton Co., 850 P.2d 1056, 1058 (Okla.1993)). "Although a plaintiff need not meet a `but for' standard, she must present evidence that does more than show the exercise of her statutory rights `was only one of many possible factors resulting in [her] discharge.'" Id. (quoting Wallace, 850 P.2d at 1059). Here, plaintiff has offered nothing to link her work-related injury to her termination other than temporal proximity. The Oklahoma Supreme Court rejected a workers' compensation claim that was based on nothing more than timing in Thompson v. Medley Material Handling, Inc., 732 P.2d 461 (Okla.1987), stating:
Id. at 464.
A similar conclusion was reached by the Tenth Circuit in Blackwell. The plaintiff in Blackwell sued her former employer alleging she had been discharged for filing a workers' compensation claim. The plaintiff had injured her back at work, returned to her job and, about a year and a half later, was fired approximately six weeks after she told her supervisor her back was still causing her trouble. The district court granted summary judgment in the defendant's favor, as he concluded the plaintiff had not presented sufficient evidence to establish the consequent termination element of her prima facie case. The plaintiff's evidence of retaliatory motive included the feeling she got when she first injured her back from her supervisor's "mannerism" that he did not want her "on workers' compensation" and her belief that "other adjusters implied to her
Many of the same circumstances are present here. Plaintiff has not shown that SAH systematically terminated employees or even terminated even one other employee after they sustained an on the job injury. She offered no evidence that she was discouraged from reporting the accident or that anyone at SAH said anything negative about the fact that she had been injured.
The court recognizes that the timing here was closer than the sequence in Thompson. Plaintiff's claim is based on her being injured on the job in early February 2009.
Plaintiff's remaining claim is based on allegations defendant tortiously interfered with her prospective business relations. She alleges in her complaint that she interviewed for a position with the OU Medical Center and, while en route to a physical and drug screening for the position, was called by the person with whom she had interviewed. She alleges he told her that her application was rejected because he had talked to defendant and plaintiff had been given a bad reference. Complaint, p. 6.
Based on the record and the parties' pleadings and briefs, the court concludes plaintiff has failed to submit sufficient evidence to warrant submission of any of her claims to a jury. Accordingly, defendant's motion for summary judgment [Doc. # 49] is